The Complainant is E. REMY MARTIN & C° of Cognac, France, represented by Nameshield, France.
The Respondent is Songguangxiu of China. 2. The Disputed Domain Name and Registrar
The disputed domain name is registered with 22net, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on July 18, 2017. On July 18, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 19, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On July 21, 2017, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on July 24, 2017. The Respondent did not comment on the language of the proceeding by the specified due date.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent in English and Chinese of the Complaint, and the proceeding commenced on July 28, 2017. In accordance with the Rules, paragraph 5, the due date for Response was August 17, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 18, 2017.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on August 28, 2017. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background A. Complainant
The Complainant is a company incorporated in France. The Complainant has used the trade mark REMY MARTIN (the “Trade Mark”) continuously since 1724 in connection with its well-known cognacs.
The Complainant is the owner of registrations for the Trade Mark in numerous jurisdictions worldwide, the earliest (French) registration dating from 1877, including international registration No. 317940, with a registration date of July 28, 1966. B. Respondent
The Respondent is an individual resident in China. C. The Disputed Domain Name
The disputed domain name was registered on June 23, 2017. D. The Website at the Disputed Domain Name
The disputed domain name is resolved to an English language website displaying keyword-based targeted advertisements in the form of links, and also containing a header with the wording “The domain may be for sale. Click here to inquire about this domain” (the “Website”). 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered and is being used in bad faith. B. Respondent
The Respondent did not respond to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding
The language of the registration agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. However, paragraph 11(a) of the Rules allows the panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding.
The Complainant has requested that the language of the proceeding be English, for the following reasons:
(i) The Respondent can understand English, as the Respondent responded to the Complainant’s cease and desist letter in English;
(ii) English is the language most widely used in international relations and is one of the working languages of the Center;
(iii) The disputed domain name is formed by words in Roman characters (ASCII) and not in Chinese script;
(iv) In order to proceed in Chinese, the Complainant would have to retain specialized translation services at a cost likely to be higher than the overall cost of the proceeding; and
(v) The Center informed the Respondent in Chinese of the filing of the Complaint, and afforded the Respondent the opportunity to respond in Chinese.
The Respondent, having received the Center’s communication regarding the language of the proceeding in both Chinese and English, did not make any submissions regarding the language of the proceeding. Having received notice of the proceeding in both Chinese and English, the Respondent chose not to file a formal response.
In exercising its discretion to use a language other than that of the registration agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs.
The Panel considers that the content of the Website and the Respondent’s English language response to the Complainant’s cease and desist letter demonstrate that the Respondent is conversant in English.
In all the circumstances, the Panel therefore determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. 6.2 Substantive Elements of the Policy
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain name comprises the Trade Mark in its entirety and is, excluding the country code
Top-Level Domain (“ccTLD”) for Cocos (Keeling) Islands (in accordance with previous UDRP decisions), identical to the Trade Mark.
The Panel therefore finds that the disputed domain name is identical or confusingly similar to the Trade Mark. Accordingly, the first element under paragraph 4(a) of the Policy has been made out. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that he or she has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has been used in respect of the Website, which provides sponsored links to websites relating to both the Complainant’s cognac products and to alcoholic drinks of competitors of the Complainant.
In addition, the panel notes that “.cc” is the ccTLD for the Australian territory of Cocos (Keeling) Islands, but there is no evidence before the Panel to suggest that the Respondent, a Chinese national, has anything to do with the Cocos (Keeling) Islands.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and therefore finds that the requirements of paragraph 4(a)(ii) are met. C. Registered and Used in Bad Faith
In light of the evidence of the Respondent’s use of the Website in the manner described above, the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.
The Panel also finds additional grounds for bad faith, under paragraph 4(b)(i) of the Policy, in light of the Respondent’s offer, in the Respondent’s email response to the Complainant’s cease and desist letter, to sell the disputed domain name to the Complainant for USD 1,500 (an amount far in excess of the likely out-of-pocket expenses incurred by the Respondent in registering the disputed domain name), and also in light of the general offer for sale on the Website.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: September 11, 2017
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